ACTION MATTERS Fredson Guilengue (Ed.) - MATERIALIEN - Rosa-Luxemburg-Stiftung
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MATERIALIEN Fredson Guilengue (Ed.) ACTION MATTERS SIX SUCCESS STORIES OF STRUGGLES FOR COMMONS IN AFRICA
CONTENTS Fredson Guirramela Guilengue Introduction 2 Andrew Bennie Defending the Commons 4 The Case of the Amadiba Victory on the ‘Right to Say No’ Ines Mahmoud “Common Good Before Private Profit!” 14 A Peasant Struggle for Land in Jemna Nadir Bouhmouch Building Power from Below 21 The Movement on Road ’96 as a Horizontal, Local, and Autonomous Model Aly Sagne Complaint Filing at International Financial Institutions 30 Successes and Weaknesses in the Case of the Sendou Coal Power Plant Richard Ntakirutimana Twa Communities in Rwanda 37 Advocating against the Impact of the Volcanoes National Park Allan Kalangi No to Encroachment 42 A Long History of Resistance in the Albertine Graben Bibliographic Notes 50
2 Introduction INTRODUCTION The continuous advance of neoliberal capital- or have control of commons. “Commons” is ism even in the context of a systemic crisis of understood here as forms of wealth consid- the capitalist system has led to many ques- ered by a particular community as essential tions about the lack of effective answers from resources that should, therefore, be both pre- the left in general, and from progressive social served and accessible by everyone. movement organizations in particular. Many The aim of this publication is neither to corrob- critics argue that socialism, despite what was orate, refute, nor expand upon any particular predicted by theorists in the past, is lacking the academic theory or body of theories, nor to ability to profit from the systemic crisis of neo- serve as an “activist guideline” containing pre- liberal capitalism. This type of critique gives a scribed steps for activists to achieve success very strong impression that progressive actors in their own lobbying, advocacy, or mass including social movement organizations are action. If this is achieved, it will be a positive failing completely in their struggle for polit- side effect—but not a chief aim—of this publi- ical and socio-economic transformations. cation and will certainly make its contributors However, while it is true that the systemic very proud. Rather, we have put together crisis of capitalism is yet to lead to its total “stories” which serve as positive empirical defeat, it is absolutely not correct to assume examples of how amidst all the existing dif- that progressive actors are not achieving any ficulties, collective action is leading to some substantial victories in their differing struggles form of success. We believe that while sharing against the advance of neoliberal capitalism in cases of success may or may not lead to their own constituencies. There are a number these actions being replicated elsewhere, it of facts which can be considered cases of will certainly make these cases more widely “success stories” which demonstrate those known, and possibly inspire much-needed victories in different parts of the world, includ- solidarity for communities in their struggles ing on the African continent. for commons. In 2018, the Africa Unit of the Rosa-Luxem You will read six different stories from six burg-Stiftung (RLS) and the respective different countries in Africa: South Africa, regional offices on the African continent ini- Tunisia, Morocco, Senegal, Uganda, and tiated a period of reflection which led to the Rwanda. While the geographic location is the objective of producing a collection of stories most salient difference in the cases gathered inspired by the success of local groups and here, colonialism and its legacies, in terms of individuals in fighting for peoples’ access to, authoritarianism and dispossession, remain a and control of, common goods (commons). common aspect. It is this reflection that led to this publication. The first case was written by Andrew Bennie Our notion of “success” here is informed by and is about the struggle of the Amadiba the local socio-economic, political, cultural, Community on the “Right to Say No” in South and environmental dynamics. We understand Africa, which led to the historic legal victory “success” when individual and/or collective by the community, won in the South African action leads to the transformation of a par- High Court in November 2018. The second ticular status quo, which brings positive ben- case is about the struggle of the Jemna com- efits to a particular community or to the entire munity over the right to land in the South of society in terms of their right to access and/ Tunisia. Written by Ines Mahmoud, it reveals
Introduction 3 another dimension to the Arab Spring, that Rwanda and their responses to these impacts, is the struggle of communities to regain in the light of the official vision of national sovereignty over their land. The third case, unity. Finally, in the sixth case, Allan Kalangi by Nadir Bouhmouch, explores how the explores how communities in the Bunyoro community of Imider in Morocco was able region in Uganda have once again mobilized to build counter-power by applying different to stage resistance against the new capitalistic strategies such as horizontal organizational trends of oil extraction that threaten to dispos- structure, direct action, cultural action, and sess them of their remaining land. counter-propaganda, in the context of their Apart from the tremendous efforts from all struggle for commons. Aly Sagne authors the of its contributors, this publication would fourth case showing how coordinated advo- not be possible without the collaboration cacy action by local communities through and support from: Andreas Bohne, Britta International Financial Institutions (IFIs) Becker, and especially Franza Drechsel (RLS temporarily prevented the 125-megawatt Africa Unit); Joan Leon and Dorothee Braun “Sendou” coal-fired power plant in the munic- (RLS East Africa); Ibrahima Thiam (RLS West ipality of Bargny (Senegal) from advancing. Africa); Khawla Ksiksi (RLS North Africa) and The fifth case, written by Richard Ntakiruti- Mai Choucri (former RLS North Africa), as well mana, focuses on the impact of the establish- as the entire staff of the RLS Africa to whom I ment of national park policies, and the inter- will be forever grateful. vention of the national government in trying to improve the living conditions of the former Fredson Guirramela Guilengue forest-dependent Batwa communities in March 2020
4 Defending the Commons
Andrew Bennie
DEFENDING THE COMMONS
THE CASE OF THE AMADIBA VICTORY ON THE ‘RIGHT TO SAY NO’
Introduction tion.4 I argue that the Amadiba struggle to
In November 2018, the coastal Amadiba
defend the commons from mining illustrates
community on the Wild Coast won a historic
a productive calibration between the use of
legal victory in the South African High Court,
legal strategies and community mobilization,
which ruled that the Department of Mineral
where the legal strategy reflected consistent
Resources (DMR) could not award a mining
and robust interaction between the commu-
right without the consent of the community.1
nity anti-mining structure, the Amadiba Crisis
The campaign around this legal case was
Committee (ACC), and the lawyers represent-
thus framed as ‘The Right to Say No’. The
ing them. An important part of understanding
ruling establishes a precedent, not just for the
the success is thus the multiple layers of
Amadiba coastal community, but for all rural
struggle, and how they cohered to deepen
communities located mostly in the former
democracy as a key weapon to fight back
homelands,2 to decide whether mining and
against a force of capitalist accumulation
other extractive activities may take place
from above. Indeed, I suggest that the suc-
on their land. This chapter will provide an
cessful legal strategy could not have emerged
without sustained extra-legal political action
account of the political and legal struggle by
by the community.
the Amadiba coastal community to prevent
mining from happening on their land. It will
This chapter briefly explores some of these
explore some of the multiple layers to the
dynamics, including everyday community
struggle that help to understand both the
resistance, historical articulations of local
course the struggle took and its success.
customary democratic structures, the role
While the community has actively mobilized
of alliance building (nationally and interna-
to defend their land against mining, it is the
tionally), the relationship to the media, and
legal aspect of the struggle that over years
the alliance’s own media and social media
has brought official barriers to the com-
strategies. Furthermore, the article will also
mencement of mining. There are those such
review the role that less visible, but neverthe-
as Patrick Bond who argue against the use of
less critical, political networking and manoeu-
the law to achieve social justice outcomes,
vring has played in strategically confronting
asserting that they weaken social mobili-
the state’s attempted public relations and
zation.3 On the other hand, Mark Heywood
political attacks in response to the communi-
argues that the Constitution and associated
ty’s victory on the legal confirmation of their
legal frameworks can be taken advantage
‘Right to Say No’. The chapter proceeds by
of to advance social justice mobilization and
providing a background and historical context
to deepen economic and social transforma-
to the struggle, after which it describes the
legal context that shaped
the ruling. I then describe
The High Court Judge argued that the some of the key aspects to
known devastating economic, social, consider in the success of
and ecological consequences of mining the case and conclude by
constituted a deprivation of land rights. restating the importance ofDefending the Commons 5
litigation emerging from, rather than replac- involve digging up 885 hectares of land, much
ing, concrete political struggle. of which is used for cattle grazing, and apart
from the 72 households that fall directly within
Background the proposed mining tenement area who
A small Australian mining company, Mineral would have to be removed, the remaining
Commodities (MRC),5 and its South African households of a community that is highly
subsidiary, Transworld Energy and Mineral dependent on the local environment for sur-
Resources (TEM), first started prospecting in vival would be significantly affected by the
2003 for titanium-related minerals in uMgun- infrastructure, activities, and environmental
gundlovu, the coastal section of the Amadiba and social impacts of mining, including
Tribal Administrative Area on the Wild Coast of massive water extraction.8
South Africa. The Wild Coast is the coastline MRC promotes the mine as a way to uplift the
of the Pondoland region, which fell under the Amadiba community socially and economi-
cally, which it consistently
argues is one of the poorest
in South Africa; however
the community has fiercely
resisted any attempts to
mine. A mining right was
awarded to TEM in 2008,
although the community
was not formally notified
and only found out through
an announcement on the
Australian Stock Exchange.
Through their lawyers, the
iNkosana’s Council 9 and
Amadiba Crisis Committee
Members of the Amadiba Crisis Committee (ACC) protest outside the office of the (ACC), which leads local
Department of Mineral Resources during their High Court case on their Right to opposition to the mining,
Say “No”. Photo: Andrew Bennie
appealed against the
former homeland of Transkei during apart- awarding of the right, and the Minister of the
heid, now in the province of the Eastern Cape. DMR reversed the decision in 2011 on the
The area is one of rolling grassland punctuated grounds that TEM failed to sufficiently show
by coastal forests, gorges, wetlands, and how the significant environmental impacts
rivers. It falls within the Pondoland Centre would be managed, especially the impact
for Endemism (PCE) and is an area of high on water resources. The core of the appeal
biodiversity, regarded as the second most against the mining was the poor community
species-rich floristic region in South Africa.6 consultation conducted by TEM and its Envi-
TEM has sought to establish the Xolobeni ronmental Assessment Practitioners (EAPs),
Heavy Minerals Sands Project by mining 360 yet the Minister specifically stated in her deci-
million tonnes worth of sand dunes for ilmen- sion that consultation had been adequate. The
ite, together with rutile, zircon and leucoxene,7 Minister also allowed for TEM to re-start its
which it claims is the tenth largest deposit of application process, and in 2015 it submitted
the minerals in the world. The mining would another application for a mining right, which6 Defending the Commons
the uMgungundlovu community has formally transnational consortium of private construc-
opposed. tion companies submitted an unsolicited bid
TEM’s ‘community empowerment partner’, to SANRAL in the early 2000s to construct
Xolco, was formed in 2003 without any the road through one of South Africa’s most
knowledge of the community, who only beautiful regions, but one that has been most
found out about it in 2007. Xolco has come neglected by the state. SANRAL and the
to be associated with the narrow interests government argue that the road will open the
of a few, and those who formed it are widely area to development as a remedy for its state
believed to be at the centre of coordinating of neglect. Yet the villages of uMgungundlovu
a web of corruption and intimidation against have opposed the road because they believe it
the community. The resistance of the five will enable the mining. It will directly affect 40
uMgungundlovu villages to the proposed homesteads and the 80-metre wide, fenced-
mining, based on the dispossession and off road reserve will split the communities in
destruction of their land and enrichment of the two. Before describing the struggle in more
elite they fear it would encourage, has come detail, I now turn briefly to the historical and
at a cost. Families became divided, with the legal context so as to understand the wider
vast majority opposed to mining and small political economy shaping the Amadiba strug-
numbers in favour. Over the years, leaders of gles, its course and its successes.
the anti-mining struggle have been attacked
and some killed, the latest and most widely Historical Context
reported of which was the assassination of After the discovery of diamonds and then
Sikhosiphi “Bazooka” Radebe, Chairperson gold on the Johannesburg reef, mining drove
of the Amadiba Crisis Committee (ACC), in the industrialization of the South African
March 2016, a day after Human Rights Day. economy and condemned millions of Africans
The villages of uMgungundlovu have also to dispossession, rural and urban poverty,
been fighting on another front, resisting the malnutrition, and overall structural inequality
construction of the greenfields section of the in pursuit of their cheap labour.10 The rural
Wild Coast N2 toll road through their land. reserves and later homelands to which Afri-
Plans for the road were first mooted after a cans were confined contributed to subsidizing
the cost of labour to capital by pro-
viding a base of survival for those
family members, mostly women
and children, who were not in the
employ of the mines, industry, or
white commercial agriculture, and
as a place for workers to return to
when their labour was no longer
required. 11 Betterment policies
were aimed at re-organizing resi-
dential and agricultural activities
in the homelands in an attempt to
make them more capable of sus-
An ACC activist and his young child look out over the Mtentu River Gorge, taining populations whose labour
the southern boundary of the proposed mining tenement area, at sunset. was not required by the dominant
Photo: Andrew Bennie
economy. This social engineeringDefending the Commons 7 project was ultimately unsuccessful and the land and mining have interacted. South Afri- homelands intensified as zones of margin- ca’s transition to democracy was also accom- alization, patterns that remain today despite panied by a relatively far-reaching process their formal disbandment. of legislative reform. The Constitution, the The Amadiba area, however, fits a bit differ- supreme law of the country, was passed in ently into this historical pattern. It was inte- 1996, and was an outcome of both struggle grated into the industrial economy as a labour from below and compromise between libera- sending area but, as with much of the Wild tion forces and the political and economic old The successful legal strategy could not have emerged without sustained extra-legal political action by the community. They have essentially created a no-go zone for any mining-related activities through mobilization. Coast,12 the community was not dispossessed guard who sought to protect their privilege. of their land, due partly to geographical However, it is often regarded as one of the remoteness and, in large part, to the Pondo most progressive in the world, and those such Revolt, in which Pondoland communities as Heywood argue that “the rights it legalised rose up in violent confrontation against the gave unprecedented legal power to people; apartheid state in the early 1960s to resist it created a rule of law framework that legiti- betterment planning and the imposition of mated and protected people involved in strug- distorted forms of traditional leadership.13 This gles for human rights and social justice.”18 is part of the precedent of determined defence While the mining sector was historically at the of control over land and natural resources heart of the mechanics of racial oppression, that is still highly evident in the present after the transition the ruling African National struggle against mining.14 It also allowed for Congress (ANC) continued to see it as a stra- the reproduction of a peasant structure and tegic core component of the economy, and reliance on the local environment. While the so was seen as a key target for racial redress. households of uMgungundlovu depend on This motivation framed the design of the diversified livelihood strategies that combine principle law regulating the mining sector, agricultural production, local resource har- the Mineral and Petroleum Resources Devel- vesting, wages, remittances, and government opment Act (MPRDA), which was passed in grants, land-based sources of livelihood retain 2002. However, although framed in nationally a high significance, which translates into transformative objectives, Capps argues that low perceptions of poverty or experiences the essence of the law is that of supporting of hunger.15 For example, in a survey of 68 capitalist class formation on altered racial of the 72 households that fall directly within foundations.19 This has in practice driven a the proposed mining tenement area, none wedge between those rural communities reported having to skip a meal,16 which stands that make way for mining and those who in contrast to South Africa in general, where reap the economic benefits, as evident in 26 percent of the population is reported to the Amadiba case. Two further key elements experience hunger on a daily basis.17 of the MPRDA shape this dynamic. The first This is the local context with which wider is that it transitioned the sector from private forces and legislative frameworks related to ownership of mineral rights to state owner-
8 Defending the Commons ship of all minerals, independently of land after she was confronted by a highly mobi- ownership. Mining companies thus have to lized community at a local meeting, where apply for rights from the state in order to mine. the announcement of the award was not The vision behind this was of the progressive met with the expected acclaim. The human state as the custodian of mineral rights on rights lawyer, Richard Spoor, and the Legal behalf of the nation’s people, which would Resources Centre (LRC) began assisting the wield this power in pursuit of transformative community from 2006 and 2007 respectively, ends.20 Secondly, the mining sector was the using administrative law based on the MPRDA key target for Black Economic Empowerment and prevailing environmental legislation to (BEE), which sought to de-racialize the mining challenge the awarding of mining rights on sector, broaden black ownership and produce procedural grounds. a ‘patriotic bourgeoisie’ whose accumulation activities advance national development.21 This largely took place through share ownership schemes. The process has contributed to intensified class formation as some black business people were able to engage in, and benefit from, the process. Nevertheless, the state has largely been frustrated in its envisaged extent of racial transfor- mation of the sector due to Early on a late-winter morning, members of a household in Sigidi Village plough the power of mining capital their field to prepare for spring planting of sweet potatoes. Photo: Andrew Bennie to push back. However, it still holds power over mineral rights, and Applying to the High Court to declare that the 90 percent of new mining rights applications community’s consent was required before are located in the former homelands,22 giving the DMR could issue a mining right marked the state the opportunity to support ‘new a shift to engaging in substantive law, where entrants’ into the industry and so continuing the legal basis of existing procedures was to pursue the rise of this patriotic bourgeoisie. challenged.23 This amounted to using a legal From the instant that the uMgungundlovu strategy to challenge an aspect of the political community found out about the mining appli- economy of mining in South Africa, the legal cation, the community started mobilizing, architecture of which the MPRDA reflected. spearheaded by elders and the local tradi- The key law used to make this case was the tional council, through challenging the local Interim Protection of Informal Land Rights state and confronting the local agents of the Act (IPILRA). The Constitution gives explicit proposed mining in community meetings, recognition to the need to address the gross and blockading prospecting attempts. The inequalities created by the history of colo- mining right was initially awarded in 2008 nialism and apartheid, including in relation but was then withheld by the then-Minister to land access and secure tenure. As such,
Defending the Commons 9 Section 25(6) mandated the passing of an group of persons whose rights to land are Act to protect the land rights of those who derived from shared rules determining access had no legal protection under previously to land held in common by such group”. 27 discriminatory laws and so whose rights to Secondly, she relied on case law to conclude land remained informal in the legal sense. The that deprivation does not have to mean that MPRDA only provides for consultation with land is physically taken away from community affected communities before a mining right members, but that their use of the land is inter- is granted, but the application argued that fered with, even if they are not removed. She because it was on land inhabited by residents argued that given the known devastating eco- under customary law (to which the Consti- nomic, social, and ecological consequences tution officially accords the same weight as of mining, the community members’ agricul- common law, as long as it does not go against tural livelihoods, access to natural resources the tenets of the former), consent in terms of like water, general way of life, and dignity IPILRA first had to be obtained from the com- would be interfered with, and so constituted a munities before the right could be granted.24 deprivation of land rights. The DMR’s legal response was that while IPILRA confers land rights on communities it The Law and Struggle does not confer on them the right to block the Members of the ACC have felt it important to exploitation of mineral resources lying under emphasize that this was not merely a legal their land (the rights to which are, as dis- victory, but reflected a political victory as cussed, vested in the state). It further argued a culmination of years of political struggle that affording communities like the Amadiba and mobilization. This is to assert their own the right to consent would amount to blocking steadfastness in ensuring that their struggle the state from advancing its racially transform- is not subsumed by the legal approach, thus ative agenda of supporting ‘new entrants’ in avoiding Bond’s caution of the demobilizing the mining industry.25 This reflects Capps’s potential of legal strategies.28 Indeed, despite argument that as a result of contestation the High Court decision, the political pressure between the state and fractions of mining persisted as the Minister of Mineral Resources capital in the formation of the original MPRDA, continued to advance the cause of mining, the imperative of reforming the conditions for which the ACC resisted at various levels, accumulation came to social justice concerns, including with direct action.29 although such reform is often still framed in This points to the overarching nature of the terms of the latter.26 relationship between community mobilization In November 2018, the High Court judge and the legal approach in the Amadiba case. handed down her judgement that declared As discussed earlier, it was the disruptive that the community members of uMgungund- tactics by the community at a local level that lovu could not be deprived of their land without initially led to the withdrawal of the mining their consent, derived through customary licence, as their mobilization increased the processes. Her reasoning on what constitutes economic and social risks of awarding a ‘deprivation’ of land rights was critical to her licence. As one of the key lawyers for the com- judgement and to what amounted to a legal munity, Johan Lorenzen, pointed out, in con- argument for protecting the commons. First, trast to other mining-affected communities she followed the definition of ‘community’ as who have sought legal assistance after mining laid out in IPILRA, which rests on the notion and its deleterious impacts have commenced, of the commons: “any group or portion of a such pre-existing mobilization that was able
10 Defending the Commons to keep mining at bay created the grounds for ongoing legal processes, plan and negotiate a successful legal strategy: “preventing the (see more below) with the community, and foothold for capital was what opened the door finalize mandates.34 for more creative legal solutions”.30 Over the Beyond these meetings there is also the many years of the struggle, members of the integral role of information flows. There was community have undertaken disruptive tactics and continues to be a constant flow of infor- like blocking roads, uprooting prospecting mation between events in the community equipment, physically chasing prospecting and the lawyers, in which, while taking action staff out of the area, and preventing consult- around them, ACC members also report the ants from entering the area to conduct studies latest developments to the lawyers by phone, for the EIA, a prerequisite of a mining right a WhatsApp group, and email. These result application. They have essentially created a in processes in which ACC members take no-go zone for any mining-related activities action on the ground, the lawyers provide through mobilization, some input, and characteristic of what information is fed to Klein describes as The case was not only the lawyers for them “blockadia”.31 about the Amadiba but to take relevant action The legal strategy related to wider questions on the legal front. aimed at entrenching of rural democracy, Such action might the uMgungundlovu land rights, and struggles entail immediately community’s right to against extractivism. drafting and sending say ‘No’ thus emerged a legal letter to the from pre-existing struggle and the “gut feeling DMR for more information on the events and from the community that they had the right reminding them of the legal restrictions to to say ‘No’”.32 Customary law processes had their attempted actions, thus combining local already determined that the mining could not direct action and formal legal procedures. go ahead; however, guided by the tenets of Furthermore, ‘invisible’ information flows the MPRDA, the DMR was not taking heed facilitated by ‘informal’ political connections of customary injunctions in its steadfast pro- and networks have allowed for information motion of mining and so, with the confidence to be fed to anti-mining activists by sympa- given by the fact that the Constitution explic- thetic state functionaries and members of itly enforces the legal weight of customary political parties, including the ruling ANC. This law, the ACC and its lawyers turned to both the has allowed the ACC to prepare its political Constitution and IPILRA to defend and assert responses before intentions have even been the power of customary processes.33 formally announced by those such as the This highlighted the importance of a wider DMR, which includes issuing press state- legal approach predicated on supporting ments that put the onus on the DMR to explain local practices of democracy, which in their itself, mobilizing the community if necessary, operation are also means of resistance. It also and feeding the information to the lawyers to links to the importance of maintaining a close inform relevant legal steps. articulation between the legal approach and The legal approach was thus always guided by local resistance. The team of human rights and predicated upon local anti-mining agency. lawyers always took their mandate from However, this does not imply a one-way the community, through direct community street from community to lawyers. Rather, meetings, where the lawyers could report on there is also at times disagreement between
Defending the Commons 11 the ACC and its lawyers, which instigates Local means of resistance are thus affirmed robust discussion and negotiation about the in relation to the wider legal strategy. It also most appropriate course of action. As the reflects the importance recognized by both spokesperson of the ACC, Nonhle Mbuthuma, the lawyers and the ACC of not reducing the described: struggle to the legal approach – especially in a Sometimes we said to take this struggle we context where the structural political context can’t only rely on lawyers and the courts. We is still not in favour of such communities.36 rely on ourselves. Yes, you can advise us but As Mbuthuma affirmed, “If the legal strategy we will take it and choose what is useful. We fails, it’s not the end of the world. We don’t know ourselves more than anybody else. It’s rely on the legal strategy alone but it is one of not about education, that’s us. the tools that we can utilize to protect our own As Mbuthuma further described, when the land, and that’s not the only one”.37 environmental consultants appointed to The legal victory on the right to say ‘No’ was conduct the environmental impact assess- thus embedded in multiple layers of activism. ment informed the community that they would A further strength of the ACC has been its be entering to undertake research work, ability to dominate the narrative about the The lawyers said, let them come, we will mining, and to use the court case to build a fight them in court and we said, no, no, no. strong public narrative about land rights, We will go there and block them… So if we democracy, the marginalization of rural areas, allow them to drill, then you lose in court, and ecological protection. For a number of what then? We are actually helping you as years preceding the case, the ACC would your client.35 send out detailed and colourfully written Similarly, members of the ACC also disagreed press statements that immediately exposed with their lawyers when Minister Mantashe underhand activities by the state and pro-min- requested a meeting with ACC leadership at a ing actors, and blatant injustices, including hotel outside of the community a few months violence meted out on community members. after the High Court judgement. While the Given the prominence of the struggle, they lawyers felt it could perhaps be strategically would be easily picked up and reported on by useful, the ACC did not want to attend the news outlets. This consistently gave the ACC meeting, as they argued that he should meet the upper hand in building the public narrative the whole community in the democratic forum around the mining, and part of its impact was of Komkhulu, the traditional meeting place. It the way in which the struggle is so indicative was eventually agreed that they would attend of wider ecological, social, and political crises. the meeting, but the only discussion the ACC Furthermore, as part of not lumping the strug- was willing to have was to tell the Minister that gle into a legal approach, the right to say ‘No’ all discussions on mining, and therefore land, case was used to undertake further media must take place in the open platform of Kom- work and alliance building. The case was not khulu, and so he should meet them, and the only about the Amadiba but related to wider whole community, there at a later date. Such questions of rural democracy, land rights, and an approach is consistently used to subject struggles against extractivism, and so a wide those in power to local democratic, customary alliance of movements and civil society organ- structures; especially to those, including the izations mobilized behind the case, which CEO of the national highway agency, who culminated in actions on the streets around wish to impose forms of so-called develop- the courthouse over the days of the case. ment upon the community. From this alliance a group of activists consti-
12 Defending the Commons
tuted a media team that undertook creative Conclusions
activities on social media and fed information, The legal confirmation of the Amadiba’s right
imagery, and carefully crafted messaging to give consent before mining can take place
to the media. This was aimed at building a on their land was a landmark judgement
public narrative that disrupted the purported that resonated for many rural communities
link between mining and development and in South Africa. Its success was built upon
turned it towards the role of democracy in a vibrant community-led struggle that had
development, the limits of the post-apartheid proud traditions of resistance to attempts to
economic development path, land rights, and wrench away local control over the commons,
social and environmental justice. Further- committed and strategic local leadership,
more, the massive media and social media a team of lawyers politically devoted to the
coverage of the case gave the ACC the upper cause of rural justice, land rights, and democ-
hand in the public discourse, which placed it racy, and the ability to mobilize research,
in a position of symbolic strength even after financial, and political resources to undertake
the case. As a result of the widespread public the case, itself a culmination of many years of
support it had built during the case, every step political and legal work. However, as Johan
that Minister Mantashe made subsequent to Lorenzen points out, this is not necessarily a
the judgement – including announcing that he sustainable model for other communities to
would appeal the outcome and attempting to replicate.38 Core to the approach of the legal
hold a meeting in uMgungundlovu that ended application was to paint as detailed a picture
in community members being teargassed – of the community as possible for the judge
was lambasted in the media and on social to fully understand the context. It involved
media platforms. Essentially, Mantashe was community surveys, historical research, focus
left with little room for manoeuvre as he con- groups, interviews, and acquiring affidavits
sistently found himself with political egg on from expert historians on Pondoland, which
his face, as social media and public discourse involved lawyers, legal interns, community
reacted in uproar at his bullying tactics and to volunteers, and professional researchers, as
his anti-democratic utterances. well as hundreds of hours of consultation and
engagement. These are com-
binations that not all rural com-
munities have access to. Fur-
thermore, as discussed in this
chapter, such litigation is only
impactful if it is ‘second fiddle’
to community mobilizing.
More broadly, a legal victory
like this does not substitute for
progressive political govern-
ance, which will be achieved
through wider building and
connecting of struggles
powerful enough to shift the
Members of the uMgungundlovu community gather outside their traditional country’s political economy
meeting place, Komkhulu, for a community meeting to discuss issues related towards deepened democracy
to the proposed N2 highway and mining. Photo: Andrew Bennie
and a just transition.Defending the Commons 13 The massive import of the ruling, however, of a further victory. This would irrevocably is that it sets a precedent that means all rural cement the right of rural communities with communities with ‘informal’ land rights informal land rights in arguably the most mar- have the right to consent before they can be ginalized regions of the country, and so afford deprived of their land. This itself shifts the them the power to disrupt the power relations political economy of mining and develop- shaping the political economy of mining and ment in South Africa. Furthermore, the DMR offer a further strategic tool for the protection has appealed the ruling and the next step is of the commons. This itself would also depend, therefore the Supreme Court of Appeal. From however, on sustained mobilization, which there the next level would be the Constitutional legal avenues would build upon and reflect, as Court, where the ACC’s lawyers are confident I have attempted to show in this chapter. 1 A.C. Basson (2018): ‘Judgement’ in the matter between Duduzile of Mineral Resources (First Respondent) and Seven Others, Case Baleni (First Applicant) and 128 others vs. Minister – Department Number: 73768/2016. 15 For a detailed discussion of this factor, see of Mineral Resources (First Respondent) and Seven Others, Case Bennie (2010, pp. 114–116); and Bennie (2011): Questions for labour Number: 73768/2016, 22 November 2018, available at http:// on land, livelihoods and jobs: A case study of the proposed mining www.saflii.org/za/cases/ZAGPPHC/2018/829.pdf. Last accessed: at Xolobeni, Wild Coast, in: South African Review of Sociology, 25 March 2020. 2 Homelands built on the native reserves created Vol. 42 (3), pp. 41–59. 16 M. Koen (2016): Supporting Affidavit. In by colonial governments, envisioned by the apartheid state to the Matter Between Duduzile Baleni (First Applicant) and Others, become semi-autonomous countries—each one for a supposedly and Minister – Department of Mineral Resources (First Applicant), different tribe—where black people could be citizens and thus not 18 September 2016. 17 Human Sciences Research Council (HSRC) make political claims on the South African state, only entering the and Medical Research Council (MRC) (2013): South African National country to provide their labour for white-controlled industry, agri- Health and Nutrition Examination Survey (SANHANES), Cape Town: culture, and households. 3 Patrick Bond (2014): The Constitution HSRC Press, 2013. 18 Heywood (2019). 19 Gavin Capps (2012): as a barrier to the resolution of widespread community rebellions in A bourgeois reform with social justice? The contradictions of the South Africa, in: Politikon. South African Journal of Political Studies, Minerals Development Bill and black economic empowerment in the Vol. 41 (3), pp. 461–482. 4 Mark Heywood (2015): Seize power! South African platinum mining industry, in: Review of African Political The role of the constitution in uniting a struggle for social justice in Economy, Vol. 39 (132), pp. 315–333. 20 Ibid. 21 Andrew Bowman South Africa in: V. Satgar, (ed.), Capitalism’s Crises. Class Struggles (2019): Black economic empowerment policy and state-business in South Africa and the World, Johannesburg: Wits University Press, relations in South Africa: the case of mining, in: Review of African 2015, pp. 245–276; Heywood (2019) South Africa’s journey from Political Economy, Vol. 46 (160), pp. 223–245. 22 Aninka Claassens socialism to human rights. The true confessions of an errant socialist, (2018): Mining – Giving the Power the People, Custom Contested, in: Journal of Human Rights Practice, Vol. 11 (2), pp. 305–323. 5 Its 10 Dec 2018, available at https://www.customcontested.co.za/ acronym is MRC because it used to be named Mineral Resources mining-giving-the-power-the-people/. Last accessed: 28 September Commodities, but it continues to use the acronym after the name 2019. 23 Interview with Johan Lorenzen (2019): Richard Spoor Inc. change. 6 Groundwater Consulting Services (GCS) (2007): Mineral Attorneys. Parktown, Johannesburg, 6 August 2019. 24 ‘Heads of Sands Resources (Pty) Ltd, Xolobeni Heavy Mineral Sands Project, Argument’ in the matter between Duduzile Baleni (1st Applicant) Environmental Management Programme (EMP), Groundwater and 128 Others vs. the Minister – Department of Mineral Resources Consulting Services (Pty) Ltd. 7 Ibid. 8 Andrew Bennie (2010): The (1st Respondent) and 7 Others, in the High Court of South Africa, relation between environmental protection and “development”. A Case Number: 73768/2016. 25 Heads of Argument of the First to case study of the social dynamics involved in the proposed mining at Fourth Respondents, ibid. 26 Capps (2012). 27 Interim Protection Xolobeni, Wild Coast. Unpublished MA Research Report, University of Informal Land Rights Act 31 of 1996 (IPILRA), section 1, Republic of the Witwatersrand, 2010. 9 The Amadiba Administrative Area, of South Africa, Government Gazette, available at https://www. which is overseen by Chief Lunga Baleni, is divided in two: the inland gov.za/sites/default/files/gcis_document/201409/act31of1996. Section 21 and the coastal Section 24, known as uMgungundlovu. pdf. Last accessed: 26 March 2020. 28 Bond (2014). 29 See UMgungundlovu has its own traditional council, or iNkosana’s Bennie (2010); and also Amadiba Crisis Committee (ACC) state- Council, whose traditional meeting place is called Komkhulu. The ments (2019a): Gwede Mantashe announces a ‘Third Coming’ to iNkosana’s Council is currently overseen by a headwoman, Duduzile Xolobeni on 16 January. “DON’T COME, MINISTER MANTASHE!”, Baleni. 10 Bernard Magubane (1996): The Making of a Racist State. 8 January 2019, available at http://aidc.org.za/mantashe-announc- British Imperialism and the Union of South Africa, 1875–1910, Africa es-a-third-coming-to-xolobeni-on-16-january-dont-come-minister- World Press, 1996; Asanda Benya (2016): Women in Mining. Occu- mantashe/. Last accessed: 25 March 2020; ACC (2019b): ‘Gwede pational Culture and Gendered Identities in the Making. Unpublished “Stun Grenade” Mantashe’s called Xolobeni R2SayNo judgement PhD Thesis, University of the Witwatersrand, 2016. 11 Ben Scully “bullshit” [bububhanxa] as he fired off his “independent survey” (2016): From the shop floor to the kitchen table. The shifting centre stunt’, 17 January 2019, available at https://karibu.org.za/mantashe- of precarious workers’ politics in South Africa, in: Review of African called-r2sayno-judgement-bullshit-2/. Last accessed: 25 March Political Economy, Vol. 43 (148), pp. 295–311. 12 Patrick McAllister 2020. 30 Lorenzen, interview (2019). 31 Naomi Klein (2014): This (2003): Xhosa agricultural work groups – economic hindrance or Changes Everything: Capitalism vs. the Climate, London: Allen development opportunity? Fort Hare Institute of Social and Economic Lane, 2014. 32 Lorenzen, interview (2019). 33 Interview with Research, Working Paper, No. 12. 13 Govan Mbeki (1964): South Nonhle Mbuthuma, Amadiba Crisis Committee leader (2019): Wits Africa: The Peasants’ Revolt, Gloucester MA: Peter Smith Pub inc.; University, Johannesburg, 14 August 2019. 34 Ibid; Lorenzen, B. Turok, (1960): The Pondo Revolt, South African Congress of Demo- interview (2019). 35 Mbuthuma, interview (2019). 36 Lorenzen, crats. 14 W. Beinart (2016): Affidavit. In the matter between Dudu- interview (2019). 37 Mbuthuma, interview (2019). 38 Lorenzen, zile Baleni (First Applicant) and 128 others vs. Minister – Department interview (2019).
14 “Common Good Before Private Profit!” Ines Mahmoud “COMMON GOOD BEFORE PRIVATE PROFIT!” A PEASANT STRUGGLE FOR LAND IN JEMNA The screams for “work, freedom and national and founded an association to collectively dignity”, echoing in the streets throughout manage both the oasis and the revenues from Tunisia in 2011, have brought about political date production. In the past eight years, this and democratic change, that led not only to led the community to great prosperity and the abolition of the former dictatorship, but investments in the farm, local infrastructure, more importantly to a new constitution and educational institutions, and other public ser- gain of political-democratic civic rights. The vices initiated through democratic decisions Tunisian revolution of 2011 has marked a among the peasants and workers of the oasis. crucial point in Tunisian history. With upris- ings, sparked in Kasserine, then later in the From Colonialism to interior regions of Tunisia, Tunisians spread Despotism: A Systematic their resistance countrywide against decades Exploitation of Land of authoritarian, corrupt rule under Zine El Jemna is surrounded by the Tunisian Sahara Abidine Ben Ali, as well as against the difficult desert and the town is known for its natural socio-economic conditions they had to live in. springs (A’in). It is one of the biggest produc- The revolt led to further uprisings in the entire ers of dates in Tunisia. Today it encompasses Arab region. Throughout the nation, the spirit about 306 hectares, with 185 date palms. In of regaining sovereignty and freedom was pre-colonial times, the land was farmed by (re)awakened: not only over the political and the local population, within which parcels of democratic space taken from the people, but the land were passed on from family to family. over all aspects of political life, as well as the Under French colonialism in Tunisia, the land economic sovereignty Tunisians had been that had formerly belonged to peasants of deprived of, from the time of French coloni- Jemna was taken from them and administered alism until power was taken by the autocratic by the French colonial power. Under the colo- government of the Democratic Constitutional nial administration, the peasants of Jemna, Rally (RCD). This regaining of sovereignty whose families had formerly owned the equally included the claim of sovereignty over land, then started growing dates for French land. export. The French created a large agricultural In Jemna, an oasis with a population of 7,000 company, the Commercial and Agricultural in the south of Tunisia, this spirit of self-de- Society of South Tunisia (SCAST) in the 1920s, termination materialized the demands of the which oversaw the management of the oasis. revolution for work, freedom, and dignity in In 1937, colonial ruler Maus de Rolley created an inspiring land rights struggle, as well as a new palm plantation outside the ancient the implementation of a unique experience oasis. Dissidents, not accepting the expropri- of collective self-management and volun- ation of their land or the labour exploitation on tarism. We could see peasants, whose land the oasis by the former colonial power, faced was taken from them under colonialism and imprisonment. later managed by corrupt landowners under After independence from France in 1956, the dictatorship, who in the course of the rev- which up to then had owned these lands, the olution reclaimed the land of their ancestors oasis was nationalized under the agricultural
“Common Good Before Private Profit!” 15
from peasants through
the former colonial
power, the Tunisian
post-independence
government, weigh-
ing up its continued
confiscation of the
land with its assess-
ment that Tunisian
farmers were too tech-
nologically backward
and economically
poor to exploit the
lands effectively and
profitably, planned to
continue the “techni-
cal modernization” of
Road crossing the oasis of Jemna. Photo: Nadir Bouhmouch the agricultural sector
by fully adopting the
decolonialization law of 1964. Through the colonial model.3 Its agenda therefore was to
law, state properties in Tunisia stretched do the latter through public management,
across nearly 800,000 hectares and were cov- improving production levels, creating value
ering a large part of the country’s most fertile and using the surplus generated. It aimed
lands. The law furthermore entrusted the man- at the possession of large private property,
agement of the land nationalized under the act mechanization, intensive use of chemical
to the Public Land Office (OTD), placed under inputs, fertilizers, insecticides, pesticides,
the authority of the Ministry of Agriculture.1 seeds and selected seedlings. In practice
At the same time, the peasants of Jemna however, the public exploitation of lands has
entered into an agreement with the state, meant a deficit. Since 1970, no fiscal surplus
paying 40,000 Tunisian dinars (TND)2—half has been registered on OTD’s account, which
the amount requested by former governor is chronically in deficit.
Ahmed Ballouna for the land at the time—to The contract was terminated by the public
reclaim the land they cultivated. In the mid- authority in the 1970s. In 1974, the oasis was
1960s however, the state preferred to return then assigned to a subsidiary of STIL, which
the money to the community of Jemna in operated about 300 hectares of the oasis of
dividends scattered among regional projects Jemna, without the approval of Jemna’s Local
such as the hotel “Oasis” or the SCAST. Ten Management Council, in which at the time
years later, in the 1970s, the state forced the only 7 of 16 members of the council approved
tutelage council of the region to donate the the transaction, deeming the expropriation of
land to the company’s Agricultural Develop- the land to STIL to be an undemocratic deci-
ment and Date Company (SODAD), a branch sion of the state and against the wishes of the
of the Tunisian Dairy Corporation STIL. local population.
While one of the most dominant demands of Through structural adjustment programmes
the independence movements was the redis- dictated by the International Monetary Fund
tribution and recovery of the land taken away (IMF) in the 1980s, the liberalization of the16 “Common Good Before Private Profit!”
Tunisian agricultural sector, and the general The Establishment of the
corruption in the Tunisian economy under Association for the Protec-
the dictatorship, the public company man- tion of Jemna’s Oasis
aging the oasis of Jemna went bankrupt in Breaking free from colonialism is, as Fanon
2002.4 The grove was consequently leased said, for a “colonized people the most essen-
for 15 years to two private investors close tial value, because the most concrete, is first
to the Trabelsis (the nepotistic circles of Ben and foremost the land: the land which will
Ali): Abdel Ben Amour, a business owner bring them bread and, above all, dignity.”6
in the domain of construction renting 111 In 2011, caught by the spirit of the Tunisian
hectares of the land for a rent of TND 9,734 revolution and the nationwide uprising carry-
(about EUR 7,400) in the first year, as well as ing first and foremost the banner of self-deter-
El Hedi Charfeddine, the brother of the former mination, especially the youth of Jemna was
general inspector of Ben Ali’s national guard, determined: the land they lived and worked
who rented 74 hectares of land for TND 5,000 on and which was leased to them, generating
(about EUR 3,800); a very low rent at the time. profit for the corrupt elites of the dictatorship,
Under the corrupt dictatorship of Ben Ali, it belonged to their ancestors. It was therefore
their right to take back what belonged
to them. The entire town, under the lead
In the course of the revolution, of the Committee for the Protection of
peasants reclaimed the land of the Revolution, organized a sit-in for 99
their ancestors and founded an days, to recover the confiscated land.
association to collectively Over a period of three months and ten
manage both the oasis and the days, tents were set up throughout the
revenues from date production. farm, in which the committee held its
meetings, distributed food to the com-
was a common practice to arbitrarily attribute munity, and in which media as well as local
land to people close to power. With the revo- radio stations worked.7 Each citizen of Jemna
lution, citizens, specifically peasants, sought contributed TND 30 to the Committee for
to “recover” these lands which they consid- the Protection of the Revolution, leading to a
ered as belonging to their ancestors. In 2011, budget of TND 34,000 (around EUR 17,500)
landless and near-landless workers occupied for the committee.8 Any equipment or material
100 farm units, totalling 10,000 hectares.5 left on the farm which belonged to the former
These movements occurred in different parts owners was returned to them. On 12 January
of Tunisia, yet the case of Jemna—due to the 2011, the community finally reclaimed 185
citizens’ unified aim to collectively reclaim hectares of land.
and manage the land instead of individually Within the period of the Tunisian revolution,
re-occupying parcels—differs from other the move to occupy the land was widespread
such land rights struggles in the country. In and targeted predominantly state-owned
Tozeur for example, an oasis in the south-west farms. What remained different between the
of Tunisia, land has equally been occupied by experience of Jemna and others is that in
inhabitants in the course of the revolution. In other villages and towns such as for example
the case of Tozeur however, this land was not Tozeur, plots were occupied by individual
distributed among the inhabitants and thus its actors and not in a collective act, and therefore
farming and revenues remained in the hands benefited the individual former owners of the
of individual occupants of the parcels. plot instead of the collective. In Jemna, by“Common Good Before Private Profit!” 17
contrast, the land was not divided into differ- visors responsible for managing workers,
ent plots. administration, finances, a general supervisor,
After the successful reclaiming of the land, the and security guards.10 The nature of the work
question of how to proceed with the manage- of farmers is adapted to the current needs
ment of the land was collectively discussed in of work on palm farms and ranges from
an inclusive process. At the beginning of the cleaning, weeding, planting, maintenance of
process, some members of the community irrigation canals, to other tasks. However, to
wanted to divide the oasis into individual this day, the state has not legally recognized
properties, the majority of the town however the association, even after it held meetings
decided that the properties should remain with the government and ministries such as
together and the oasis be managed collec- the ministry of state property, or the ministry
tively. With the aim of collectively sharing and of agriculture.
managing the reclaimed land, inhabitants of
Jemna founded the Association for the Pro- Social Investments and
tection of Jemna’s Oasis (APJO) in 2012. That Economic Growth
way, they wanted to promote more socially The association uses its revenues to plant
sensitive management of agriculture and rein- new orchards, cover water and electricity
vestment of revenues for community devel- bills, maintain the palm trees, and pay the
opment.9 The slogan used by the APJO was salaries of 150 workers. It has also under-
“Common good before private profit!” The taken development projects: it bought an
APJO operates as an association. As such, it ambulance and built a permanent structure
has an external accountant, who verifies the for the market (souk) of 1400 square metres
budget and expenses of the association. It to protect people from the sun, started the res-
has statutes and operates in accordance with toration of the cemetery of Jemna, and in two
the Tunisian legislative framework on associ- primary schools built classrooms, bathrooms,
ations. The employees of the association are a library, a teacher’s room, a snack bar for
managed by three supervisors. The work of students in the main entrance, and a gym for
the 150 workers is divided into farmers, super- the high school. Recently, the APJO has been
planning the construction
of a hamam (public bath-
house).11
It also provides support
for cultural and charitable
organizations in Jemna.
In the past, APJO hosted
cultural festivals, pro-
vided a big donation to
the regional section of the
Tunisian Union for Aid of
the Intellectually Disabled
(UTAIM) as well as the
mosque and local quranic
school. It also financially
assisted associations in
A barn on the collectivized date farms in Jemna. Photo: Nadir Bouhmouch neighbouring villagesYou can also read
